Despite what you’ve seen in movies and on television, the vast majority of legal cases settle before they ever get to the trial stage. This makes having a skilled negotiator in your corner essential. However, what if your settlement negotiations go horribly wrong? What if you realize your attorney is not an effective negotiator at all?
There are not a lot of concrete answers to those questions. When it comes to settlement malpractice, the standards are, well, unsettled. The fact is settlement negotiations rarely result in allegations of malpractice or complaints to the bar. There are several reasons why settlement malpractice doesn’t come up very often.
Attorneys have the benefit of the doubt in settlement negotiations
The strategy of an attorney is rarely questioned when it comes to settlements. Unlike a trial, there are fewer established standards when it comes to negotiations. Also, unlike a trial, you have the final say in whether you choose to accept an offer. It can be hard to pin all of the blame on the ineffective assistance of counsel or legal malpractice when you have some degree of control over the outcome.
Also, malpractice claims live or die on your ability to show that you suffered some sort of irreparable harm. For example, you may be able to show a significant financial difference in what you would have won or lost had your attorney acted properly. This is much more difficult to do when both sides agree to accept an offer.
However, this doesn’t mean that settlement malpractice is a myth. You may be able to point to the failures of your attorney and how those failures resulted in real damage to your case. A skilled professional can help you explore your options.